The Declaration
Julie Andrews had it right:
“Let's start at
the very beginning,
A very good place to start-“
Thomas Jefferson,
as we all learned in school, wrote the Declaration.
Take a look,
first, at just part of it, broken into an outline with some notes added. Note
carefully, the emphasized words, terms, and phrases :
1)
“When
in the Course of human events, it becomes necessary for one people
a.
[…]to
assume among the powers of the
earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them,
b.
[…] they should declare the causes which
impel them to the separation.”
2)
“We
hold these truths to be self-evident,
a.
that
all men are created equal,
b.
that they are endowed by their Creator with
certain unalienable Rights,
c.
that
among these are Life, Liberty and the pursuit of Happiness.—
3)
“[T]hat
to secure these rights,
a.
Governments are instituted among Men,
b.
deriving
their just powers from the consent of
the governed, --
4)
“[T]hat
whenever any Form of Government becomes destructive of these ends,
a.
it is
the Right of the People to alter or to abolish it,
b.
and to institute new Government, laying its
foundation on such principles and organizing its powers in such form, as to
them shall seem most likely to effect their Safety and Happiness. […]
And,
5)
...when a long train of abuses […] evinces
a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to
provide new Guards for their future security.” [Emphasis added.]
Our tendency is
to simply read the Declaration and think, “Well put. Sounds great.” But, in
1776, the claims in the Declaration put out as “self-evident” were anything but
self-evident to most ruling classes and were not supported by history. In fact,
these ideas were novel.
So, it’s critical
to closely examine the italicized words, understand where they came from,
understand Jefferson’s purpose and reason for using them--especially, the words
“Law of Nature and Nature’s God” and the term, “self-evident--” to understand
how Jefferson could make such bold claims in the face of prevailing wisdom and
history.
We'll do just that,
but first, let’s recall what John Kennedy had to say about Thomas Jefferson at
a White House dinner for the intellectual elite of the country--writers,
scientists, artists, philosophers, etc.:
“I think this is the most extraordinary collection of talent, of human
knowledge, that has ever been gathered at the White House - with the possible
exception of when Thomas Jefferson dined alone.”
The Declaration of Independence and the Constitution of the
United States are the great state papers that formalize the structure of our
government. It is virtually impossible
to comprehend, let alone discuss, a Constitutional issue or a decision of the
Supreme Court, without an understanding of the text of the Declaration and an
understanding of the phrase “the Laws of Nature and
Nature’s God” and the term, “self-evident,” as those words are used in that
document.
With regularity, the Supreme Court’s decisions dictate the
manner we exercise, and places limitations on, our liberty to enjoy the Pursuit of
Happiness, rights the Declaration says we're born with.
We can’t all become constitutional lawyers, but we can learn
enough about the government the Founders set up in 1789 to ask the right
questions about the Court’s decisions and make up our own minds about whether
the justices are implementing the
Constitution or, are perverting it
according to their own political, social, or private views--whether they are applying the principles of the Constitution or "interpreting" and rewriting them.
The Constitution was drafted and enacted to set up the
structure of our government, give it power to do some things, forbid it to do
some things, and, in my view, the Bill of Rights (the first ten amendments) is
a list of what government is not to even
think about doing!
There is one other very
important provision in the Tenth Amendment the general public is, for the most
part, unaware:
“The powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or
to the people.” (Constitution of the United States, Amendment X, italics
added.)
The Tenth Amendment says, in street terms, if some power
isn't set forth in the Constitution or its Amendments, it is beyond the power of the federal government to exercise such a
power. That power resides in the states or the people, themselves. It’s the job of the Supreme Court to declare such illegal action
void and, and if possible, unwind the damage. It’s our job as citizens to
make damn sure that the court does its just that and doesn't write its own views,
biases, and prejudices into a Constitution it’s supposed to protect, not amend.
We need to hold that Court accountable. That means we've got
to understand the Constitution that created it, and, especially, the limits the
Constitution places on that court and on the
rest of government.
The first step in understanding the Constitution is to
understand the Declaration of Independence—much more so than merely reading it
in school, perhaps, memorizing the preamble, and noting that it declared our
independence. There’s much more to it than that, and the first step to its understanding is to get some
understanding of its author: Thomas Jefferson.
Jefferson’s ideas about government were grounded in the
concept of Natural Law.
The same can be said about the Founders who, thirteen years later, drafted and
implemented the Constitution.
Jefferson wrote the Declaration; his language is based on
Natural Law; and, the Constitution is the government formed “by the consent of
the governed” that the Declaration declares to be self-evidently the right of
any people.
So, we begin by understanding Natural Law, to understand
why Jefferson’s Declaration used the phrase, “Laws of Nature and Nature’s God,”
and the words, “We hold these
Truths to be
self-evident, that all
Men are created equal, that
they are
endowed by their Creator with certain unalienable Rights, that among these
are Life, Liberty and the Pursuit of Happiness….”
[Italics added.]
The term “self-evident,” itself, (as used in the
Declaration) is one of the primary principles of Natural Law.
Thomas Jefferson’s religious beliefs and political views were similar to 18
th Century
Deists.
He believed
in God. He did not see God as being
involved as personally in the lives of humans as believers do today,
but he did think of God as a Creator. That’s evident in the preamble to the
Declaration, itself: “…all men are
created
equal, […]they are
endowed by their
Creator with certain unalienable Rights....”
[Emphasis added.]
More specifically, Jefferson referred to God as man’s
“Maker”:
"...[T]he subject of religion,
a subject on which I have ever been most scrupulously reserved.
I have considered it as a matter between
every man and his maker, in which no other, & far less the
public, had a right to intermeddle." [Emphasis added.]
Further, and key,
Jefferson believed the Creator “endowed”
humans with the ability to reason:
“Well aware that the opinions and
belief of men depend not on their own will, but follow involuntarily the
evidence proposed to their minds; that Almighty God hath created the mind free,
and manifested his supreme will that free it shall remain by making it
altogether insusceptible of restraint; that all attempts to influence it by
temporal punishments, or burthens, or by civil incapacitations, tend only to
beget habits of hypocrisy and meanness, and are a departure from the plan of
the holy author of our religion, who being lord both of body and mind, yet
choose not to propagate it by coercions on either, as was in his Almighty power
to do, but to exalt it by its influence
on reason alone;…
…
‘’[T]ruth is great and will prevail
if left to herself; that she is the proper and sufficient antagonist to error,
and has nothing to fear from the conflict unless by human interposition
disarmed of her natural weapons, free argument and debate; errors ceasing to be
dangerous when it is permitted freely to contradict them.” [Italics added.]
"Man [is] a
rational animal,
endowed by nature with rights and with
an
innate sense of justice." Thomas
Jefferson to William Johnson, 1823. ME 15:441
[Emphasis added.]
"Under the law of nature, all
men are born free,
every one [not, “everyone”] comes into the
world with a right to his own person, which includes the liberty of moving and
using it at his own will. This is what is called personal liberty, and is given
him by the Author of nature, because necessary for his own sustenance." [Brackets,
mine.]
In Jefferson’s view, human beings are
born free, and with the ability to reason and with the ability to
will.
He used the term “created,” but, even professed atheists will concede,
as they must, that man somehow comes into being, with the ability to reason,
albeit at various levels of proficiency, according to each person’s
intellectual capability. The atheist or
agnostic
has more difficulty explaining the origin of reason (
logos), but must concede its existence if he/she is to
use it to make an argument for
non-belief.
Thus, both Jefferson and “atheists” would consider the inherent ability of humans to reason
to be self-evident, that is, something
“any fool could see,” because the very
discussion of the ability to reason is to concede its existence. That concession is implicit in Descartes’s
famous proclamation, “Je pense, donc je suis” (“I think, therefore, I am,”
i.e., I exist.”)
Further, humans, self-evidently, have the ability to
communicate, and to remember. (Need this be argued?) The development of
language and the ability to write, both put on steroids by the printing press
and, now, the computer age, have given humans access to everyone else’s ideas
and discoveries--those contemporary and those for all recorded history. Because we can store what we’ve learned in
books and computers, we have a history
that informs our thinking, experience actual and vicarious that our reason can
use to see what’s obvious in Man’s existence.
Our ability to recall, communicate with each other and read
what everyone else in recorded history has to say—all of that knowledge and
experience--provides a sound basis for human beings to believe in some self-evident truths, e.g., fire
is hot, doing what one likes provides more happiness than being told what one
must do, even such things as “power corrupts; absolute power corrupts
absolutely.” (Lord Acton, RIP.)
Jefferson considered history
to be vital and urged its study:
“… [T]he people...are the ultimate guardians of their own liberty.
History by apprising them of the past will enable them to judge of the future.
It will avail them of the experience of other times and other nations; it will
qualify them as judges of the actions and designs of men."
Human beings, born with a history and the capacity to
reason, see that there are some facts of life, including what makes them happy
and how they’d like to be governed, that are obvious, can be recognized by “any
fool,” and are, well, “self-evident.”
Thus, Jefferson believed the truth of some propositions are
obvious and need no proof. A self-evident truth is a truth so obvious, to even
the most pedestrian mind, that it requires no proof at all, and that’s what he says
in the Declaration: such truths exist and the rights to life, liberty, and the
pursuit of happiness are three of those self-evident truths. Jefferson called such
self-evident truths “laws” and called the lot of them “The Laws of Nature and
Nature’s God.” Thus:
“When, in the
course of human events, it becomes necessary for one people […] to assume among
the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature's God
entitle them…[]…We hold these Truths
to be self-evident, that all Men are
created equal, that they are endowed by their Creator with certain unalienable
Rights, that among these are Life, Liberty and the Pursuit of Happiness….”
And, what he implied was (dramatic
writers call it “subtext”), “These laws, self-evident Truths are so obvious,
that you, George III, and everyone else who gives the matter some thought,
should see and understand those laws, and we’re not going to waste time proving
what’s so obvious.” [My, modern street language, translation.]
To sum up, we can conclude Jefferson
believed Natural Law to be nothing more, really, than the Creator’s laws, the
“Laws of Nature and of Nature’s God,” obvious to all, so obvious that anyone,
being born with the ability to reason, could recognize. Put another way, anyone with ordinary or even sub-average
intelligence, with the ability to function in life, earn a living, provide for
dependants, live in a community, could see that : “all men are born with certain [i]nalienable rights, that among these are life, liberty and the
pursuit of happiness.” ("Unalienable corrected to modern usage: "inalienable.")
And those laws, because we’re born
with the ability to reason, are as obvious as simple math, 2 plus 2, the
difference between night and day, certainly the ability to earn a living,
raise children, and live in a community. These are obvious to “any fool”
because of past human experience, i.e. , history, seen through the lights of
reason, which is an endowment of our Creator.
Or, if you profess to be a non-believer, reason with which we’re born, wherever it may have come from.
Jefferson was confident that most colonists could communicate, read, comprehend
current events, and history, and discuss political issues intelligently, and, were, thus, capable of recognizing the self-evident laws of Nature..
He
apparently had a sound basis for his opinion.
(See, generally, at:
http://answers.google.com/answers/threadview?id=361434. ) John Adams agreed.
What are examples of “self-evident truths” recognized by the
colonial “man in the street”?
The most basic, of course, are the most easily recognized
and comprehended, e.g., It is self-evident that people are happiest when left
alone to do as they please. The obvious corollary is that no one else should
interfere with that liberty and that one's own liberty is constrained by his/her duty to avoid interfering with someone else’s liberty.
And, from each basic self-evident truth, derivatives and
corollaries follow.
If one person makes himself happy by stealing, robbing, or
assaulting his fellow creatures, that person must be restrained. The
self-evident conclusion, the corollary, or derivative, is that all must give up
some of their freedom to insure the maximum freedom of everyone.
Jefferson stated the self-evident solution:
“That to secure these Rights, Governments are
instituted among Men….” (Italics added.)
And, a second self-evident truth would be that those
governments “…derive[e] their just Powers from the Consent of the Governed….”
It’s simple logic that we must give up some of our liberty
to keep order and protect us from others and, also, to protect them from us. But, it is also self-evident that the rules and organization
set up should be designed and consented
to by those whose freedom is to be limited, e.g., “Government by the
Consent of the Governed.”
Jefferson would have insisted that history shows that government
without the consent of those governed has not produced liberty and the freedom
of human beings to pursue happiness. That conclusion would be self-evident to a
rational person, and, since it is self-evident, he saw no reason to explain it
in the Declaration. That truth is simply
so obvious that everyone, including the George III, should have seen it and
should have understood it whether he had liked it or not.
In fact, Jefferson’s list of grievances against George III,
is a list of examples that demonstrate that government by monarchy, without the
consent of the governed, does not provide for life, liberty, and the pursuit of
happiness for anyone except the rulers.
We’ve seen that,
in street vernacular, self-evident really means some thing or concept so
obvious that “any fool could see it,” for example: the difference between black and white,
whether the sun is shining, the difference between a pig and a human.
And, even more
subtle distinctions.
The
difference between a pig and human involves: a) what comes to mind when we see
one or the other, and,especially, when we see both at the same time, and, b)
what comes to mind when we hear or read the words “pig” or “human.”
Now, as to the
difference between a pig and a human, most of us would agree the two are not
the same type of creature and, importantly, “any fool” should see and
understand that difference. But, the
devil’s advocate might ask, “What about the difference between a six foot ten
NBA player and a petite ballerina?”
The ballerina
and, say, Kareem aldul Jabbar (The Great One), demonstrate how different humans
can be, but still be recognized, even by the most dim-witted, as both being
human. That is, the fact that the huge
basketball player and the petite ballerina are both human is self-evident. The same could be said for the
difference between an auto and a bicycle and the difference between a Ford and
a Chevrolet (although, that’s becoming more difficult, especially, at a
distance!).
So, Jefferson
asserted in the Declaration that (again in street terms) “any fool” could see
that,
a) all men (by “men,” he obviously
meant “humans”) are created equal,
b) they’re born with some
“unalienable” rights that cannot be
taken from them. (He said, “unalienable,” but in 2015 we can say
“inalienable”),
and,
c) three of those rights are i) Life,
ii) Liberty, and, iii) the Pursuit of Happiness.
The subtext is: “Any
fool should see and understand these points, and I’m not going to waste time
justifying my claim.”
Now, this is an important point: An historian (in 1776) or, indeed, George
III, himself, might have said,
“I don’t see anything ‘self-evident’
about your claim. We’ve had slavery
since the beginning of mankind. We’ve
had kings, strong-men, and oligarchies—groups, who ruled over the rest of their societies, and, for that matter, women have traditionally had
children, cooked, washed, and scrubbed floors, following the general consensus in
history that they are the weaker sex.”
A slaveholder
might have said,
“As far as I’m concerned, my slaves
were born to serve me. If one gets out
of line, I can kill him. He’s my
property. He’s got no “right” to
life. He was not born equal to me. In
fact, he was born to make me happy, not to “pursue happiness”
himself."
As late as the
20th Century, many men would have said, “My wife’s purpose is to
have my children, take care of my household, the children, and, most
importantly, me.”`
The king,
the slave owner, men in general, and others might have said:
“It’s simply not obvious to us that all human beings have the same rights. It’s most assuredly not obvious that all
humans are born equal! Any fool can see some are smart, some are
dumb. Some in between. Some strong, some
weak. If you want to use the term
“self-evident,” you must agree that the differences in human beings’
intelligence, looks, judgment, strength, whatever, are self-evident.
“So, what’s the basis for your
claim that everybody is born equal and every single human being has, at birth,
the same rights?”
All in chorus and harmony might demand:
“What’s the authority for the claim that everyone is born with ‘the
separate and equal station to which the Laws of Nature and of Nature's God
entitle them.’ Just what on earth are ‘Laws
of Nature and of Nature's God’? Did you
come by this by Divine Revelation? If
so, I’d like you to know that we got a different message!”
To understand
the Declaration, we must answer those
questions, i.e.:
a) Does
Jefferson rely on a Divine Revelation by his use of the words “The law of
Nature and Nature’s God? If not, what is
the basis of his claim?
and,
b)
What does “created equal” mean
in the Declaration?
A good, working
definition of Natural Law is:
“[The] theory that some laws are basic
and fundamental to human nature and are
discoverable
by human reason without reference to specific legislative enactments or
judicial decisions. Natural law is opposed to positive law, which is
human-made, conditioned by history, and subject to continuous change. “
[Italics added.]
(It is noteworthy that our Supreme
Court has recognized the
logos of Natural
Law.
)
Thomas Jefferson explicitly names Cicero as one of several major writers and thinkers who
contributed to the tradition “of public right” that informed Jefferson’s view
that the Law of Nature is not created by man. Rather, man is born with the ability to recognize this
law, and, because man is born as a rational being.
Cicero wrote, variously:
“…[L]aw is highest reason,
implanted in nature, which orders those things that ought to be done and
prohibits the opposite.”
“We must explain the nature of law
[ius], and this must be traced from human nature.”
“This, then, as it
appears to me, has been the decision of the wisest
philosophers, that law was neither a thing
contrived by the genius of man,
nor established by any decree of the people,
but a certain eternal princi-
ple, which governs the entire universe, wisely
commanding what is right
and prohibiting what is wrong.
[…]
[The power of law] is
not only far more
ancient than any existence of states and
peoples, but is coeval with God
himself, who beholds and governs both heaven
and earth.”
[Brackets in original.]
“True law is right
reason conformable to nature, universal, unchangeable,
eternal, whose commands urge us to duty, and
whose prohibitions
restrain us from evil.
[…]
This law cannot be
contradicted by any other law, and is not liable either to derogation or
abrogation. Neither the senate nor the people
can give us any dispensa-
tion for not obeying this universal law of
justice. It needs no other expos-
itor and interpreter than our own conscience.
It is not one thing at Rome, and another at Athens; one thing today and another
to-morrow, but in all times and nations this universal law must for ever reign,
eternal and imperishable. It is the sovereign master and emperor of all beings.
God
himself is its author, its
promulgator, its enforcer.
[…]
“This, then, as it
appears to me, has been the decision of the wisest
philosophers, that law was neither a thing
contrived by the genius of man,
nor established by any decree of the people,
but a certain eternal princi-
ple, which governs the entire universe…Therefore
they called that aboriginal and
supreme law the mind of God, enjoining or
forbidding each separate
thing in accordance with reason. [The power of
law] is not only far more
ancient than any existence of states and
peoples, but is coeval with God
himself, who beholds and governs both heaven
and earth.”
(Brackets
in original.)
According to Cicero, Natural
Law is not a creation of man; therefore, its pre-existence implies a Creator of
man and a Law-Giver as the source of Natural Law.
The
Declaration is in one sense a more important state document than the Constitution.
The Declaration is the foundation on which the Constitution is built.
If we want
to understand the Constitution, it’s absolutely essential to first understand
the Declaration, where it came from, what it’s terms mean, and how it’s
principles are what are government rests upon. Only then, can one notice when government swings away from, or morphs into, something different than
the government the Declaration and the Constitution created--s government we accept is
self-evidently the best, maybe the sole, means of preserving our freedom.
We can’t
even enter into a meaningful discussion of the Constitution or a specific
decision of some court without an understanding of the two great state
documents.
Both, can
be understood by a lay person. They’re both short. It takes less than an hour
to slowly read the Constitution. We can read the Declaration in a matter of
minutes, and it’s easy to understand, although Jefferson had his own way of
spelling, punctuation, and capitalization. (If you’re Thomas Jefferson, you can
get away with that.)
The
Constitution takes a bit of help to read. Here’s why.
First, the Constitution
assumes that a reader will understand some terms (not many) that are readily
understood by lawyers.
Why did they
use legal terms, not necessarily in common use by non-lawyers? Not a mystery:
it saves time, and lots and lots of words. Many of the Founders were lawyers and many of the legal terms were familiar to the colonists. Some are familiar to those of us who aren't lawyers (and have lives!).
An
example: habeas corpus.
Many of us
learned in school that the Writ of Habeas Corpus originated in England and is a
court order which is directed to any official who’s holding someone in custody.
It orders that officer to come before the court, immediately, and tell the
court why and under what authority he or she is keeping the “petitioner” (the prisoner) confined.
In
ordinary language, if I get arrested, put in the slammer, illegally (at least in
my opinion), I’ll tell my lawyer to go see the judge, get an order from the
judge. That order tells the jailor, or whoever is holding me, to come in to court and
give a good, sound legal reason for why I'm being held. If the judge decides
the reason given doesn’t pass muster, the court will order my release,
immediately.
My
illustration, even in the simple form I’ve tried to use, is still wordy, very
wordy. So, it’s easy to see why the Founders didn’t take the time to define
just what a writ of habeas corpus is
(there’s a great deal more to it than just described). They got their point across
by simply using the term habeas corpus--an
awful lot of law shoved into the document with two Latin words.
(As an
aside, this example illustrates why judges and lawyers often speak in a strange
language. Governor Jerry Brown once
remarked that lawyers, with their strange incantations, are them modern day
High Priests. But, legal terms are usually used
very effectively because a huge body of law can be expressed in short
terms or, regularly, by simply naming some specific decision of an appellate
court--e.g.,
"Marbury," "Boykin v. Alabama, your Honor."-- This parenthetical is what’s called in Cajun Louisiana,
“lagniappe.” Look it up. It’s a useful
term—well, it is if you're in New Orleans.)
But,
there’s more.
The
Constitution can be a bit confusing to lay readers because it
embodies common
law
rules, in addition to legal terms
like
habeas corpus, and
practices that date from hundreds of
years back into English legal history.
Habeas corpus originated (depending on
which legal historian you choose) some hundred or so years before the
Declaration was drafted, or, according to some, as early as the
Magna Carta, 1215.
And, the
lay reader doesn’t get any warning when one of these common law principles is hidden in some constitutional provision.
(But, right in the middle of this
discussion, I want to say this: In spite
of what’s being described and explained here, a person of ordinary intelligence
and education can understand the Constitution quite well, particulary nowadays,
when we have such resources as Wikipedia and other internet sources. A
researcher or professional writer must always check Wiki cites to authenticate
accuracy, but, for the most part, the information there is reliable. At times
opinion creeps in, but this is usually easily spotted and the bases for it are
usually cited. Use Wiki; it’s great.)
But back
to the implicit inclusion of the English Common Law into the Constitution.
Probably, the Founders should have explicitly stated that the English Common
Law, as of ratification of the Constitution, would be the law of the land
throughout the country where it applied, e.g., criminal law, business law, and
land law. Some states, both before and after ratification, did exactly that.
They included the English Common Law as of some specific date.
Had the
Founders explicitly adopted the Common Law as of ratification, it might have
had the effect of standardizing law throughout the country. As it did not, each state has its own
constitutional and statutory law, subject to, of course, federal law.
It would have also warned a reader that these principles, rules, and practices were embodied in the law of the land and would explain some terms and phrases used in the Constitution.
But, the
Founders did not expressly adopt the
Common Law, nor did they bother spelling out in the Constitution that some
provisions of it would be implemented according Common Law principles.
The
colonies were all governed under the English Common Law, and, even before the
revolution, the individual colonies tried to use the Common Law, although it
was difficult because for a long while they simply didn’t have the books! This probem was solved to some extent
by the gradual availability of Blackstone’s
Commentaries, a work which attempted to summarize the body of English Law
which had developed since the Conquest. The Hand of Blackstone is still felt today!
Because
the colonies were the “children” of England, it appears that few, if any,
lawyers had the idea that anything other than the Common Law would be the law
of the land, and that attitude prevailed after the Revolution. It appears
that the Founders took the same view and simply assumed, without expressly
saying so, that the English Common Law was the foundation of the new nation’s law and was incorporated into the operation of the judiciary in the new government.
Marbury v. Madison
is one of the most important Supreme Court decisions in our history. It’s still
very relevant to what goes on today in the courts. But, leaving its holding
aside, it’s also an excellent example to illustrate the invisible English
Common Law in the Constitution.
Marbury
filed a request, a “petition,” directly in the Supreme Court and asked for a
specific court order. This type of request that he made is called a “Petition
for Writ of Mandamus.” As with habeas
corpus, the Writ of Mandamus was created and developed over the years in English
Common Law.
The term, "mandamus,” is a household phrase in a lawyer’s lexicon today, and was so, in Colonial America. And, all lawyers
(except, apparently, Marbury’s lawyer) would know that the only place you can initially make such a request, i.e.,
“file” such a petition, is in a court of “original jurisdiction,” a lower
court. That is, one must first go to what we now call a “trial” court, the
level where Perry Mason used to rip up Hamilton Berger. (I’ve wondered how
Berger kept his job. As far as I know, he never won a case!) The trial court is the court where most lawsuits begin, e.g., personal injury, criminal trials, debt
collection, breach of contract—that sort of thing. Most traffic tickets or
“small claims"--you sue your tenant because he hasn't paid his rent--are at an
even lower level.
But, if
you want a Writ of Mandate, an order to an official to perform his/her legal
duty—say, issue a marriage license when the official refuses, issue an order
for the city to issue you a building license if you’ve got a disagreement about
that, or, even to order the President to spend money according to a
congressional appropriation,
you can’t start at the top, the Supreme Court, or even a mid-level court, e.g.,
the Federal Circuit Court of Appeals. You've got to start at the bottom, in
what would now be a Federal District Court.
But
Marbury started at the top—his lawyer filed the petition
directly in the Supreme Court and “petitioned,”asked, that court to issue a
writ of mandamus to James Madison, Jefferson’s Secretary of State, and tell
Madison to deliver a commission to Marbury.
Marbury
had been appointed by John Adams as a Justice of the Peace in Washington, but
no one delivered his commission to him which would have effectively set him up
in business as a JP. He wanted that commission, so he asked the Supreme Court
to order Madison to turn it over. Madison had declined to do so.
There is a
story behind this, but, read about that elsewhere.
For the moment, it’s significant that Marbury’s case was thrown out, and John
Marshall wrote a long opinion which is, perhaps, the most important case ever
decided by the Supreme Court.
But, why must a Petition for a Writ of Mandate
be filed in a lower court rather than in the Supreme Court?
Well, the
common law of England says so. It’s simply the rule, “the way it’s always been
done,” developed over the years.
Okay, so
what? Well, the “what?” is: The Supreme Court is an appellate court. It has no jurisdiction, no power to rule, on
anything except appeals from lower
courts! Since Marbury’s petition is not
an appeal, the Supreme Court can’t even hear
the case, let alone, issue the order!
Why is the highest court in the land an appellate court, with no power (“jurisdiction”) over the
case? Simple. Article 3 of the Constitution limits the power of the Supreme
Court to only specified cases that may be filed directly in that court.
Petitions for Writs of Mandate are not included (and, under common law rules
could not be included). Apart from the list of exceptions, the Supreme Court may
only hear appeals--“appellate jurisdiction.”
Why does
an appellate court have no jurisdiction to hear petitions for writs of mandate?
Again, simple. That was the custom under the English Common Law.
The Founders
didn’t describe an “appellate” court. It wasn't necessary because all the
lawyers (and many non-lawyers) would have known what an appellate court could
do and what it could not, at least, in very general terms. Nothing more needed to be
said about appellate courts in the Constitution itself.
A second example to show the
implicit adoption of the Common Law is in the text of the Northwest Ordinance
adopted shortly after ratification. Language from that document includes this:
“Art. 2. The inhabitants of the said territory shall always be entitled to the
benefits of the writ of
habeas corpus,
and of the trial by jury; of a proportionate representation of the people in
the legislature; and of judicial proceedings according to the course of the
common law.”
[Italics added.]
Some Final Thoughts
The Founders, having the Declaration in mind, drafted the Constitution to create a government that would embody the self-evident truths the Declaration proclaimed:
“all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed….”
So, reading the Constitution requires going into more than the text itself. But, even though, it takes many years of study to become a Constitutional lawyer, with a little help, the ordinary citizen can get a good grasp of constitutional law—enough to have some sense of whether any branch of the federal government is going of the rails—going astray from the government that was set up in 1789.
There is nothing wrong with changing the way our government or the way it is run, although, history has shown that it’s best to do so seldom and with a lot of thought.
Frankly, neither we nor our leaders are as smart, or as steeped in governmental theory, and as well-equipped, to draft a Constitution as the Founders were. That collection of men was what some statisticians refer to as a “five sigma event”—an event so remote in probability as, for the most part, not worth counting on.
We probably ought to leave the Constitution alone. It’s highly doubtful that we can improve it
But, if we must change it, we should change it according to the amendment process the Founders built into it—not by judicial fiat or executive order--certainly not with a committee of five unelected lawyers that make up a majority of the nine justices on the Supreme court.
The
Constitution that went into force in 1789 had one
tragic flaw: It recognized and accepted slavery in direct contravention of
the proclamation in the Declaration that “all men are created equal.” The
Fourteenth Amendment enacted just after the Civil War forbade denial of the
“equal protection” of law to any person within the jurisdiction of a court.
In the 20th
Century, and since, legislatures and
courts continue to wrestle with balancing equal rights with other individual
rights, unenumerated, but thought by some to be self-evident rights such as the right to
associate or do business with whom one chooses.
The 1789
Constitution was imperfect in that recognized slavery. Even after the
passage of the Bill of Rights in 1791, slavery continued and was not abolished
throughout the country until passage of the Fourteenth Amendment in 1868. It was not until
Brown v.
Board of Education
in 1954 that segregation was declared unlawful.
The
Constitution’s history has not been
perfect, but, it’s difficult to find an example of government in history that
has done a better job.
Because
the fundamental rights we have as free person, life, liberty, the pursuit of
happiness, are so vital to our well-being and our right to enjoy life as best we
can, enjoy the fruits of labor, and indulge ourselves in the activities we find
meaningful and enjoyable, we must have an understanding of why we’ve got these
rights and whether we're losing them. Are they in danger? If so, we've got to
go to battle stations and protect them.
The
Constitution included a provision for its own amendment
in keeping with the proclamation in the Declaration that,
“…when a long train of abuses and
usurpations […] evinces a design to reduce them under absolute Despotism, it is
their right, it is their duty, to throw off such Government, and to provide new
Guards for their future security.”
Obviously, peaceful change is better
than violent revolution, so, the Founders built in a means of peacefully
changing it.If we don’t like what the government
is doing, we've got two means of changing it:
a) overthrow it and start over (not
recommended), or, b) amend the Constitution in the manner prescribed. The first
is, well, not what we agreed on, and, the second is difficult, intentionally
so, to assure stability.
Perhaps, the most important aspect
of the Constitution is the separation of powers among three branches of
government, an act which is now called the doctrine of (what else?), the
“Separation of Powers.”
Since all governmental power
self-evidently resides in the people, that government may do only what the
people agree to allow it to do. Our Constitution, our Social Contract
,
divides the powers we've given up to the government among the three separate
branches. This tripartite structure, the “Separation of Powers,” was embodied
in the Constitution to prevent one branch or another, or a collusion of two
branches, from acting in violation of the Constitution, itself, or changing it
on their own to personal or political predilections.
We must understand the structure of our government set up by the Constitution to make sure any
government we elect sticks to the rules and limits imposed by the Constitution.
At this writing, 2015, it’s apparent
that we've already allowed our government to stray off the rails into
government by bureaucracy and decree, i.e., Executive Order, i.e., healthcare
administered by of all people, the Internal Revenue Service
,
and, an attempt to convert millions of people unlawfully resident to
citizenship by presidential decree.
Let’s learn what our “unalienable rights” and what protection was put into our
governmental structure and make sure those in office stick to the plan.
Note:
Comments are welcome. The author has a thick skin. Be candid.
Lee Hubbard
Los Angeles, 2015
